People v. Arevalo, B259998

Citation244 Cal.App.4th 836,198 Cal.Rptr.3d 343
Decision Date08 February 2016
Docket NumberB259998
CourtCalifornia Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Edgar Omar AREVALO, Defendant and Appellant.

California Appellate Project, Jonathan B. Steiner, Los Angeles, Lisa Ferreira and Susan Hier, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Noah P. Hill and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON, P.J.

Edgar Omar Arevalo appeals from the trial court's order denying his petition for resentencing under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or the Act). The Act amended Penal Code 1 sections 667 and 1170.12 (the Three Strikes law) to reduce the punishment for some third strike offenses that are neither serious nor violent. The Act also added section 1170.126 to create a procedure by which some inmates already serving third strike sentences may seek resentencing in accordance with the new sentencing rules.

Arevalo is serving an indeterminate sentence under the Three Strikes law, having been found guilty in a bench trial of grand theft auto and driving a vehicle without the owner's consent. The trial judge, however, acquitted Arevalo of the charge of possession of a firearm by a felon and found the "armed with a firearm" allegation to be not true.

Arevalo subsequently petitioned for a reduction of his sentence pursuant to Proposition 36, arguing that in light of his acquittal and the not-true enhancement finding, he was eligible for resentencing because he had not committed the disqualifying conduct of being armed with a weapon during the commission of his "current offense."2 (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

The resentencing court, which by stipulation was not the trial court that had rendered the verdicts and findings, rejected Arevalo's contention. Reaching its findings under a preponderance of the evidence standard, the resentencing court concluded that Arevalo had been armed with a weapon during the commission of his offenses. Accordingly, it held that Arevalo was ineligible for resentencing under section 1170.126.

Arevalo appeals, contending that the resentencing court erred in finding him ineligible based on facts not established beyond a reasonable doubt. We agree, and we reverse and remand for further proceedings. Under a properly applied "beyond a reasonable doubt" standard, Arevalo's acquittal on the weapon possession charge, and the not-true finding on the allegation of being armed with a firearm, are preclusive of a determination that he is ineligible for resentencing consideration. As a matter of law, therefore, Arevalo is eligible for resentencing. What remains to be adjudicated, however, is whether, under a preponderance of the evidence standard,3 he should be resentenced or whether he would pose an unreasonable risk of danger to public safety such that he should not be resentenced.

FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 1994, the victim left the keys in the ignition of his car when he stopped momentarily to drop off his dog at the home of relatives. When he returned, the car was gone. The victim reported the theft of the car to the police. Approximately 30 minutes later, a police officer observed the victim's car pull in at a gas station. Arevalo exited the car and was arrested. The officer found an unloaded revolver on the passenger seat of the car.

Arevalo said the gun did not belong to him. The firearm was not registered to either the victim or Arevalo.4

A bench trial was held in April 1995. Arevalo was charged with grand theft of a vehicle (§ 487h, subd. (a)), driving a vehicle without the owner's consent (Veh. Code, § 10851 ), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)).5 As to the first two counts, the information also alleged Arevalo was armed with a firearm in the commission of these offenses (§ 12022, subd. (a)(1)).

Arevalo was also charged with residential burglary arising from a different incident.

The trial court found Arevalo guilty of grand theft auto and driving a vehicle without the owner's consent. Arevalo was acquitted of the burglary and possession of a firearm charges, and the court found the "armed with a firearm" allegation not true. The court further found that Arevalo had suffered multiple prior "strikes" under the Three Strikes law and sentenced him to 25 years to life for grand theft auto. The court stayed a similar term for driving without the owner's consent pursuant to section 654's prohibition on multiple punishment.

In the first appeal of this matter, we affirmed Arevalo's conviction but remanded for resentencing in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. (People v. Arevalo (Sept. 4, 1996, B093496) [nonpub. opn.].) On remand, the trial court again sentenced Arevalo to 25 years to life. We then affirmed that sentence. (People v. Arevalo (May 15, 1998, B110091) [nonpub. opn.].)

On November 6, 2012, California voters approved Proposition 36, which amended the Three Strikes law to reduce punishment for certain offenses. Later that month, Arevalo petitioned the court for recall of his sentence and resentencing pursuant to section 1170.126. In January 2013, the resentencing court found the petition had stated a prima facie basis for resentencing and issued an order to show cause.

In October 2013, the District Attorney filed opposition and argued Arevalo was ineligible for resentencing because he was armed with a firearm during the commission of his "current offense."6 In October 2014, the resentencing court held a hearing on the matter and, based on its review of the testimony at trial, the court concluded Arevalo "was armed within the meaning of Penal Code sections 667 [, subd. (e) ](2)(C)(iii) and 1170.12 [, subd. (c) ](2)(C)(iii), and therefore [is] ineligible for resentencing." The court noted that the original trial court had found the "armed with a firearm" allegation not true, but stated that "[a] finding of an allegation of ‘not true’ does not mean the non-existence of guilt, factual innocence, or incredulity of testimony given at trial." Arevalo timely appealed.7

CONTENTION

Arevalo contends the resentencing court erred in concluding he was ineligible for resentencing based on facts not established by his underlying conviction.

DISCUSSION
1. The Act .

In the California Supreme Court's recent opinion in (People v. Johnson (2015) 61 Cal.4th 674, 189 Cal.Rptr.3d 794, 352 P.3d 366 (Johnson )) addressing the Act, the court summarized the Act's purpose and provisions as follows:

"Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) [8 ] The [prospective provisions of the] Act [9 ] amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C) ; see §§ 667.5, subd. (c) [list of violent felonies], 1192.7 [list of serious felonies], 1192.8 [additional serious felonies for purposes of § 1192.7].)

"The Act's exceptions to the new sentencing provisions relate to a defendant's current offense and prior offenses. If the current offense involves controlled substances and specified findings are made concerning the quantity of controlled substances involved, or if the current offense is among specified sex offenses, a defendant with two or more strikes must be sentenced to a term of at least 25 years to life. [Fn. omitted.] (§§ 667, subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is also required if, [d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.’ (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Finally, a defendant will be excluded from the new sentencing provisions if he or she suffered a prior conviction for ... [certain offenses listed in section 667, subdivision (e)(2)(C)(iv) and section 1170.12, subdivision (c)(2)(C)(iv) which are sometimes referred to as] ‘super strikes.’ [Citation, fn. omitted.]

"In addition to reducing the sentence to be imposed for some third strike felonies that are neither violent nor serious, the Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. (§ 1170.126.) ‘An inmate is eligible for resentencing if ... [¶] ... [t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent....’ (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the new provisions, an inmate is disqualified from resentencing if any of the exceptions set forth in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are present. (§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing, however, the rules governing resentencing provide that an inmate will be denied recall of his or her sentence if ...

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